Archive for the ‘unity of possession’ Category

A DMC need not attach a right to exclusive use to any particular shares in the land

December 19, 2010

The right to exclusive use or occupation of a specific part of  a building in multiple ownership in Hong Kong is usually created by covenant between the co-owners contained in the Deed of Mutual Covenant. The covenant can be enforced between co-owners (Conveyancing and Property Ordinance s.41(7)) whether or not the right to enforce the covenant is expressly attached to ownership of ‘shares’ (or to any particular shares)  in the building. It is enough that the party seeking to enforce the right to exclusive occupation has ‘shares’ in the building (is a tenant in common).  

In Jumbo King v Faithful Properties Ltd ([1999] 3 HKLRD 757, CFA) a developer purported to assign the right to the exclusive occupation of certain utility rooms and portions of a flat roof to purchasers of units in the commercial part of his development. The right to exclusive occuption of the utility rooms and portions of the flat roof was not expressly attached in the Deed of Mutual Covenant to ownership of shares in the building (a share being a stated fraction of a tenancy in common). The Court of Final Appeal held that there was no legal necessity for the right to exclusive use to be expressly attached to ownership of  a stated percentage ownership of the development (to specific shares). It is enough that the person claiming the right to exclusive occupation has some shares. This is necessary because the covenant in question is a land covenant made enforceable between co-owners by CPO s.41(7) and because the right to go to any part of the building relies on the unity of possession enjoyed by a tenant in common.